Opinion
CASE NO. 1119 CRD-7-90-10
OCTOBER 31, 1991
The claimant was represented by Lawrence Geller, Esq., Law Offices of Francis J. DiScala.
The respondents were represented by Kevin Maher, Esq., Maher Williams.
This Petition for Review from October 3, 1990 Finding of the Commissioner for the Seventh District was heard April 26, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Andrew Denuzze.
OPINION
Claimant appeals the Seventh District denial of his claim. She raises the following issues: (1) it was error to find that June, 1975 was the date of injury, (2) the employer respondent in June, 1975 furnished medical services by referring her to the company physician, (3) it was incorrect to find no written notice of claim for compensation was given within a year of injury and (4) the commissioner erred in rendering a decision before proceedings were concluded and in denying the Motion to Submit Additional Evidence.
Claimant was employed in Stamford by the respondent employer, a manufacturer of x-ray tubes, from August 8, 1970 to April 16, 1984. For a six and a half year period she was a pressure tester. That position required her to tighten the end cap of an x-ray tube with a wrench, insert air pressure into the tube and then place the tube in a tub of water to determine if there were any leaks. This activity occurred thirty to forty-five times each working day and frequently six or seven days a week. In June, 1975, claimant saw the company nurse and complained of pain in her hands. The claimant then saw the personnel manager who made an appointment for claimant to see Dr. John H. Harness of Darien, the company physician. Claimant kept the appointment and paid the physician herself; upon her return to work she gave the doctor's report to the company nurse. Her condition worsened and in early 1978 she underwent bilateral carpal tunnel surgery and was therefore unable to work from February 13, 1978 to the end of June, 1978.
The commissioner found no Sec. 31-294 written notice was given by claimant, and the employer referral to Dr. Harness did not satisfy the constructive notice provisions of Sec. 31-294 excusing the written notice requirement when an employer has furnished medical care.
Sec. 31-294 prior to 1980 provided in pertinent part: No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or from the first manifestation of a symptom of the occupational disease and nature of such disease, as the case may be, which caused the personal injury . . . . or if within said period of one year an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as hereafter provided in this section, no want of such notice of claim shall be a bar to the maintenance of proceedings and in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning such personal injury and was prejudiced by the defect or inaccuracy of such notice . . . .
Boutin v. Industrial Components, 4 Conn. Workers' Comp. Rev. Op. 19, 237 CRD-6-83 (1987) is, in part, applicable to the instant appeal. Boutin held that an employee who suffered from carpal tunnel syndrome had sustained a personal injury due to repetitive trauma. It then held that as a personal injury stemming from repetitive trauma cannot be definitely located as to time and place, the limitation period for such a claim did not begin to run "until the employee knew or should have known . . . [of] a disabling condition arising from the employment." Id. at 23. In the instant matter there are no factual findings which indicate when the claimant knew or should have known that her disabling condition was the result of her employment. Boutin, id. requires such an inquiry and determination.
Pich v. Pratt Whitney, 4 Conn. Workers' Comp. Rev. Op. 163, 354 CRD-6-84 (1988) is also relevant on the date of injury issues. Pich held that in repetitive trauma injuries, the date of injury was the last day of exposure to the trauma, i.e. the last day worked. In the present matter it may very well be that the employee continued to suffer the trauma until the last day worked in 1978.
In Gesmundo v. Bush, 133 Conn. 607 (1947) our Supreme court held the furnishing of medical care dispensed with the need for a written notice of claim where a claimant alleging a work related frost bite injury reported the injury to his superintendent and was told to consult with the company's physician. The claimant did so and, as in the instant matter, paid the physician himself. Gesmundo held, "That the plaintiff saw fit to pay the doctor does not alter the situation; it is the fact that the defendant, through its superintendent, made provision for medical treatment that makes unnecessary the formal notice." Id. at 612.
Carlino v. Danbury Hospital, 1 Conn. App. 142 (1984) aff'g 1 Conn. Workers' Comp. Rev. Op. 219, 25 CRD-7-80(b) (1982) involved a claimant health care worker, who reported to a physician, an employee of the same employer, the details of a back injury incurred at work; the physician did not examine the claimant but merely referred her to a psychiatrist. The case held that those circumstances constituted the furnishing of medical care under Sec. 31-294. See also, Pagliuco v. United Illuminating, 5 Conn. Workers' Comp. Rev. Op. 27, 427 CRD-4-85 (1988).
Thus the provisions of Sec. 31-294, as interpreted by the case law we have cited, mandate that the commissioner should have made further inquiry. As there was no Memorandum filed, it is impossible to determine the legal basis upon which the trial commissioner concluded that Sec. 31-294's exception to a written notice of claim for the furnishing of medical care was not satisfied. Absent such further inquiry, the factual findings below are insufficient to support the legal conclusion that Sec. 31-294 was not satisfied.
We therefore remand the matter for further proceedings in conformity with this opinion and sustain the appeal.
Commissioners Gerald Kolinsky and Andrew Denuzze concur.